Common use of Insolvency Matters Clause in Contracts

Insolvency Matters. (a) The Collateral Trustee (on behalf of the First-Out Secured Parties) and the First-Out Representative, for itself and on behalf of the First-Out Secured Parties, and the Collateral Trustee (on behalf of the First Lien Secured Parties) and the First Lien Representative for itself and on behalf of the First Lien Secured Parties, acknowledge and agree that because of, among other things, their differing rights to payment in respect of the Collateral, the First-Out Obligations are fundamentally different from the First Lien Obligations and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held by a court of competent jurisdiction that the claims of the First-Out Secured Parties and the First Lien Secured Parties in respect of the Collateral constitute only one secured claim (rather than separate classes of secured claims), then each of the parties hereto hereby acknowledges and agrees that all distributions from or in respect of the Collateral hereunder shall be made as if there were separate classes of secured claims against the Grantors from or in respect of the Collateral and the First-Out Secured Parties shall be entitled to receive (subject to the provisions of Section 3.4 of this Agreement), in addition to amounts distributed to them from, or in respect of, the Collateral in respect of principal, any pre-petition interest and other claims, all amounts owing in respect of any post-petition interest, fees, costs, expenses, premiums, and other charges, irrespective of whether a claim for such amounts is allowed or allowable in such Insolvency or Liquidation Proceeding, before any distribution from, or in respect of, any Collateral is made in respect of the claims held by the First Lien Secured Parties who are not the Collateral Trustee (other than distributions of Collateral pursuant to Sections 3.4(a)(II) and 3.4(a)(IV)), with the Collateral Trustee (on behalf of the First Lien Secured Parties, but not on behalf of itself) and the First Lien Secured Parties (except the Collateral Trustee) acknowledging and agreeing to turn over to the First-Out Secured Parties prior to the Discharge of First-Out Obligations (other than Excess First-Out Obligations) amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence (excluding amounts received pursuant to Sections 3.4(a)(II) and 3.4(a)(IV)), even if such turnover has the effect of reducing the claim or recovery of the First Lien Secured Parties who are not the Collateral Trustee. Notwithstanding any provisions of this Section 2.4(a) to the contrary, the Collateral Trustee’s Fees and Expenses shall at all times be paid in full, prior to any payments being made to any of the other First Lien Secured Parties. (b) If the Company and/or any other Grantor shall become subject to an Insolvency or Liquidation Proceeding and shall, as debtor(s) in possession, move for approval of a financing (each, a “DIP Financing”) to be provided by one or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law (including on a priming basis) or the use of cash collateral under Section 363 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, each Priority Lien Secured Party (other than the Controlling Priority Lien Representative) agrees that it will not raise, join or support any objection to any such financing or to the Liens on the Collateral securing the same (“DIP Financing Liens”) or to any use of cash collateral that constitutes Collateral, unless the Controlling Priority Lien Representative shall then oppose or object (or join in any objection) to such DIP Financing or such DIP Financing Liens or use of cash collateral, in each case so long as (A) the Priority Lien Secured Parties of each Series of Priority Lien Debt retain the benefit of their Liens on all such Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis-à-vis all the other Priority Lien Secured Parties (other than any Liens of the Priority Lien Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of such Insolvency or Liquidation Proceeding, (B) the Priority Lien Secured Parties of each Series of Priority Lien Debt are granted Liens on any additional collateral pledged to any Priority Lien Secured Parties as adequate protection or otherwise in connection with such DIP Financing or use of cash collateral, with the same priority vis-à-vis the Priority Lien Secured Parties as set forth in this Agreement, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the Priority Lien Obligations, such amount is applied pursuant to Section 3.4, (D) if any Priority Lien Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section 3.4 and (E) either (i) the Liens securing such DIP Financing are not senior to the Liens securing the Priority Lien Obligations, and the First-Out Obligations maintain the same priority with respect to proceeds of the Collateral as set forth in Section 3.4 (including that the First-Out Obligations will have priority ahead of the obligations owed to the DIP Lenders) or (ii) the Discharge of First-Out Obligations (other than with respect to any Excess First-Out Obligations) occurs in connection with such DIP Financing; provided that (x) the Priority Lien Secured Parties of each Series of Priority Lien Debt shall have a right to object to the grant of a Lien to secure the DIP Financing over any property or assets subject to Liens in favor of the Priority Lien Secured Parties of such Series of Priority Lien Debt that does not constitute Collateral and (y) that the Priority Lien Secured Parties receiving adequate protection shall not object to any other Priority Lien Secured Party receiving adequate protection comparable to any adequate protection granted to such Priority Lien Secured Parties in connection with a DIP Financing or use of cash collateral.

Insolvency Matters. (a) The Collateral Trustee (on behalf of the First-Out Secured Parties) and the First-Out Representative, for itself and on behalf of the First-Out Secured Parties, and the Collateral Trustee (on behalf of the First Lien Secured Parties) and the First Lien Representative for itself and on behalf of the First Lien Secured Parties, acknowledge and agree that because of, among other things, their differing rights to payment in respect of the Collateral, the First-Out Obligations are fundamentally different from the First Lien Obligations and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held by a court of competent jurisdiction that the claims of the First-Out Secured Parties and the First Lien Secured Parties in respect of the Collateral constitute only one secured claim (rather than separate classes of secured claims), then each of the parties hereto hereby acknowledges and agrees that all distributions from or in respect of the Collateral hereunder shall be made as if there were separate classes of secured claims against the Grantors from or in respect of the Collateral and the First-Out Secured Parties shall be entitled to receive (subject to the provisions of Section 3.4 of this Agreement), in addition to amounts distributed to them from, or in respect of, the Collateral in respect of principal, any pre-petition interest and other claims, all amounts owing in respect of any post-petition interest, fees, costs, expenses, premiums, and other charges, irrespective of whether a claim for such amounts is allowed or allowable in such Insolvency or Liquidation Proceeding, before any distribution from, or in respect of, any Collateral is made in respect of the claims held by the First Lien Secured Parties who are not the Collateral Trustee (other than distributions of Collateral pursuant to Sections 3.4(a)(II) and 3.4(a)(IV)), with the Collateral Trustee (on behalf of the First Lien Secured Parties, but not on behalf of itself) and the First Lien Secured Parties (except the Collateral Trustee) acknowledging and agreeing to turn over to the First-Out Secured Parties prior to the Discharge of First-Out Obligations (other than Excess First-Out Obligations) amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence (excluding amounts received pursuant to Sections 3.4(a)(II) and 3.4(a)(IV)), even if such turnover has the effect of reducing the claim or recovery of the First Lien Secured Parties who are not the Collateral Trustee. Notwithstanding any provisions of this Section 2.4(a) to the contrary, the Collateral Trustee’s Fees and Expenses shall at all times be paid in full, prior to any payments being made to any of the other First Lien Secured Parties. (b) If the Company and/or any other Grantor shall become subject to an Insolvency or Liquidation Proceeding and shall, as debtor(s) in possession, move for approval of a financing (each, a “DIP Financing”) to be provided by one or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law (including on a priming basis) or the use of cash collateral under Section 363 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, each Priority Lien Secured Party (other than the Controlling Priority Lien Representative) agrees that it will not raise, join or support any objection to any such financing or to the Liens on the Collateral securing the same (“DIP Financing Liens”) or to any use of cash collateral that constitutes Collateral, unless the Controlling Priority Lien Representative shall then oppose or object (or join in any objection) to such DIP Financing or such DIP Financing Liens or use of cash collateral, in each case so long as (A) the Priority Lien Secured Parties of each Series of Priority Lien Debt retain the benefit of their Liens on all such Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis-à-vis all the other Priority Lien Secured Parties (other than any Liens of the Priority Lien Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of such Insolvency or Liquidation Proceeding, (B) the Priority Lien Secured Parties of each Series of Priority Lien Debt are granted Liens on any additional collateral pledged to any Priority Lien Secured Parties as adequate protection or otherwise in connection with such DIP Financing or use of cash collateral, with the same priority vis-à-vis the Priority Lien Secured Parties as set forth in this Agreement, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the Priority Lien Obligations, such amount is applied pursuant to Section 3.4, (D) if any Priority Lien Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section 3.4 and (E) either (i) the Liens securing such DIP Financing are not senior to the Liens securing the Priority Lien Obligations, and the First-Out Obligations maintain the same priority with respect to proceeds of the Collateral as set forth in Section 3.4 (including that the First-Out Obligations will have priority ahead of the obligations owed to the DIP Lenders) or (ii) the Discharge of First-Out Obligations (other than with respect to any Excess First-Out Obligations) occurs in connection with such DIP Financing; provided that (x) the Priority Lien Secured Parties of each Series of Priority Lien Debt shall have a right to object to the grant of a Lien to secure the DIP Financing over any property or assets subject to Liens in favor of the Priority Lien Secured Parties of such Series of Priority Lien Debt that does not constitute Collateral and (y) that the Priority Lien Secured Parties receiving adequate protection shall not object to any other Priority Lien Secured Party receiving adequate protection comparable to any adequate protection granted to such Priority Lien Secured Parties in connection with a DIP Financing or use of cash collateral.

Insolvency Matters. (a) If any Grantor shall become subject to an Insolvency or Liquidation Proceeding under the Bankruptcy Code or other applicable Bankruptcy Law and shall, as debtor(s)‑in‑possession, move for approval of a DIP Financing under Section 364 of the Bankruptcy Code (or any similar provision of any other Bankruptcy Law) to be provided by one or more lenders (the “DIP Lenders”) and/or the use of cash or other collateral under Section 363 of the Bankruptcy Code (or any similar provision of any other Bankruptcy Law), each Secured Party agrees that it will not raise any objection to any such financing or to the Liens on the Collateral securing the same (“DIP Financing Liens”) or to any use of cash or other collateral or to grant of any administrative expense priority under Section 364 of the Bankruptcy Code (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Collateral, each Secured Party will subordinate its Liens with respect to such Collateral (other than any Liens of any Secured Parties constituting DIP Financing Liens and customary trustee and professional fee carve‑outs), and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Collateral granted to secure First Lien Obligations, each Secured Party will confirm the priorities with respect to such Collateral as set forth herein); provided, in each case, that: (A) all DIP Lenders are then-current First-Out Lenders and/or Term Lenders; (B) the maximum principal amount of Indebtedness permitted under such DIP Financing does not exceed $25,000,000; (C) the Secured Parties retain the benefit of their Liens on all such Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis‑à‑vis all the other Secured Parties (other than any Liens of the Secured Parties constituting new-money DIP Financing Liens and customary trustee and professional fee carve‑outs) as existed prior to the commencement of such Insolvency or Liquidation Proceeding; (D) the Secured Parties are granted Liens on any additional or replacement collateral pledged to any Secured Parties as adequate protection or otherwise in connection with such DIP Financing and/or use of cash or other collateral, with the same priority vis‑à‑vis all other Secured Parties as set forth in this Agreement (other than any Liens of any Secured Parties constituting new-money DIP Financing Liens); (E) if any amount of such DIP Financing and/or cash or other collateral is applied to repay any of the First Lien Obligations, such amount is applied pursuant to Section 3.4; (F) if any Secured Parties are granted adequate protection with respect to the First Lien Obligations subject hereto, including in the form of periodic payments, in connection with such use of cash or other collateral and/or DIP Financing, all other Secured Parties shall be granted adequate protection on the same basis (provided the proceeds of such adequate protection will be applied pursuant to Section 3.4); (G) the terms of such DIP Financing do not provide for the sale of a substantial part of the Collateral or require the confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof); provided, that the Secured Parties of each Series of First Lien Debt shall have a right to object to the grant of a Lien to secure the DIP Financing over any property or assets subject to Liens in favor of the Secured Parties of such Series of First Lien Debt or its Representative of the type described in Section 2.3(b); and (H) (i) for the 30-day period beginning on the date the Company first solicits proposals for any DIP Financing, the First-Out Lenders shall have the exclusive right to propose a DIP Financing, and (ii) thereafter, if no First-Out Lender has delivered a DIP Financing proposal to the Company or the Company has rejected all such proposals, then the Term Lenders shall be permitted to offer and to provide DIP Financing so long as such DIP Financing does not include any provisions for “roll up”, repayment or refinancing of Term Obligations, or any extension of Liens or administrative claims for the benefit of the Term Obligations that are not subject to the provisions hereof with respect to the liens for the benefit of the First-Out Obligations, or other forms of cross-collateralization with respect to the Term Obligations and shall expressly provide that the First-Out Obligations shall receive similar treatment. (b) The Secured Parties receiving adequate protection shall not object to any other Secured Parties receiving adequate protection to the extent they are granted comparable adequate protection in connection with a DIP Financing and/or use of cash or other collateral. Any cash or other collateral provided to repay any of the First Lien Obligations shall be applied as provided in Section 3.4. (c) Each Representative, for itself and on behalf of each other Secured Party waives any claim that may be had against either Representative or any other Secured Party arising out of any DIP Financing Liens or administrative expense priority under Section 364 of the Bankruptcy Code (in each case that is granted in a manner that is not prohibited by this Agreement). (d) None of the Term Representative or any other Secured Party shall oppose or seek to challenge any claim by any Secured Party for allowance in any Insolvency or Liquidation Proceeding of First Lien Obligations consisting of post‑petition interest, fees or expenses to the extent of the value of the Lien of the Collateral Agent. (e) None of any Term Representative or any other Secured Party (whether in the capacity of a secured creditor or an unsecured creditor) shall propose, vote in favor of, or otherwise directly or indirectly support any Plan of Reorganization that is inconsistent with or in violation of the priorities or other provisions of this Agreement, other than with the prior written consent of the First‑Out Representative or to the extent any such plan is proposed or supported by the number of First‑Out Secured Parties required for First-Out Secured Parties’ class to be an accepting class under section 1126(c) of the Bankruptcy Code without taking into consideration any votes in that class on account of claims that are not First-Out Obligations. Furthermore, none of any Term Representative or any other Term Secured Party (whether in the capacity of a secured creditor or an unsecured creditor) shall object to or contest (or support any other party in objection or contesting) a Plan of Reorganization or other dispositive restructuring plan on the grounds that the First-Out Obligations and Term Obligations are classified separately so long as such plan are not inconsistent with or in violation of the priorities or other provisions of this Agreement. (f) The Collateral Trustee Agent (on behalf of the First-Out First‑Out Secured Parties) and the First-Out First‑Out Representative, for itself and on behalf of the First-Out First‑Out Secured Parties, and the Collateral Trustee Agent (on behalf of the First Lien Term Secured Parties) and the First Lien Term Representative for itself and on behalf of the First Lien Term Secured Parties, acknowledge acknowledges and agree agrees that because of, among other things, their differing rights to payment in respect of the proceeds of the Collateral, the First-Out First‑Out Obligations are fundamentally different from the First Lien Term Obligations, are not substantially similar to the Term Obligations within the meaning of Bankruptcy Code Section 1122(a), and must be separately classified in any plan Plan of reorganization proposed Reorganization proposed, confirmed, or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held by a court of competent jurisdiction that the claims of the First-Out First‑Out Secured Parties and the First Lien claims of the other Term Secured Parties who are not First‑Out Secured Parties in respect of the Collateral constitute only one secured claim (rather than separate classes of secured claims), then each of the parties hereto hereby acknowledges and agrees that all distributions from or in respect of the Collateral hereunder shall be made as if there were separate classes of secured claims against the Grantors from or in respect of the Collateral (for this purpose ignoring all claims held by the Term Secured Parties who are not First‑Out Secured Parties) and the First-Out First‑Out Secured Parties shall be entitled to receive (subject to the provisions of Section 3.4 of this Agreement)receive, in addition to amounts distributed to them from, or in respect of, the Collateral in respect of principal, any pre-petition pre‑petition interest and other claims, all amounts owing in respect of any post-petition post‑petition interest, fees, costs, expenses, premiums, and other charges, irrespective of whether a claim for such amounts is allowed or allowable in such Insolvency or Liquidation Proceeding, before any distribution from, or in respect of, any Collateral is made in respect of the claims held by the First Lien Term Secured Parties who are not the Collateral Trustee (other than distributions of Collateral pursuant to Sections 3.4(a)(II) and 3.4(a)(IV))First‑Out Secured Parties, with the Collateral Trustee Agent (on behalf of the First Lien Term Secured Parties who are not First‑Out Secured Parties, but not on behalf of itself) and the First Lien Term Secured Parties (except the Collateral Trustee) who are not First‑Out Secured Parties acknowledging and agreeing to turn over to the First-Out First‑Out Secured Parties prior to the Discharge of First-Out Obligations (other than Excess First-Out Obligations) amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence clause (excluding amounts received pursuant to Sections 3.4(a)(II) and 3.4(a)(IV)e), even if such turnover has the effect of reducing or eliminating the claim or recovery of the First Lien Term Secured Parties who are not the Collateral Trustee. Notwithstanding any provisions of this Section 2.4(a) to the contrary, the Collateral Trustee’s Fees and Expenses shall at all times be paid in full, prior to any payments being made to any of the other First Lien First‑Out Secured Parties. (bg) If The Secured Parties irrevocably agree that this Agreement (including the Company and/or any other Grantor shall become subject to an Insolvency or Liquidation Proceeding and shall, as debtor(sprovisions of Section 3.4) in possession, move for approval of a financing (each, constitutes a “DIP Financing”subordination agreement” within the meaning of Section 510(a) to be provided by one or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code or any equivalent similar provision of any other Bankruptcy Law (including on a priming basis) or the use of cash collateral under Section 363 of the Bankruptcy Code or any equivalent provision of any other applicable Bankruptcy Law. (h) If, each Priority Lien Secured Party (other than the Controlling Priority Lien Representative) agrees that it will not raise, join or support any objection to any such financing or to the Liens on the Collateral securing the same (“DIP Financing Liens”) or to any use of cash collateral that constitutes Collateral, unless the Controlling Priority Lien Representative shall then oppose or object (or join in any objection) to such DIP Financing or such DIP Financing Liens or use of cash collateral, in each case so long as (A) the Priority Lien Secured Parties of each Series of Priority Lien Debt retain the benefit of their Liens on all such Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis-à-vis all the other Priority Lien Secured Parties (other than any Liens of the Priority Lien Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of such Insolvency or Liquidation Proceeding, (B) the Priority Lien Secured Parties of each Series of Priority Lien Debt are granted Liens on any additional collateral pledged to any Priority Lien Secured Parties as adequate protection or otherwise in connection with such DIP Financing or use of cash collateral, with the same priority vis-à-vis the Priority Lien Secured Parties as set forth in this Agreement, (C) if any amount of such DIP Financing or cash collateral is applied to repay any debt obligations of the Priority Lien reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed pursuant to a Plan of Reorganization, both on account of First‑Out Obligations and on account of Term Obligations, such amount is applied pursuant to Section 3.4, (D) if any Priority Lien Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateralthen, the proceeds provisions of this Agreement will survive such adequate protection are applied pursuant distribution and will apply with like effect to Section 3.4 and (E) either (i) the Liens securing such DIP Financing are not senior to the Liens securing the Priority Lien Obligations, and the First-Out Obligations maintain the same priority with respect to proceeds of the Collateral as set forth in Section 3.4 (including that the First-Out Obligations will have priority ahead of the obligations owed to the DIP Lenders) or (ii) the Discharge of First-Out Obligations (other than with respect to any Excess First-Out Obligations) occurs in connection with such DIP Financing; provided that (x) the Priority Lien Secured Parties of each Series of Priority Lien Debt shall have a right to object to the grant of a Lien to secure the DIP Financing over any property or assets subject to Liens in favor of the Priority Lien Secured Parties of such Series of Priority Lien Debt that does not constitute Collateral and (y) that the Priority Lien Secured Parties receiving adequate protection shall not object to any other Priority Lien Secured Party receiving adequate protection comparable to any adequate protection granted to such Priority Lien Secured Parties in connection with a DIP Financing or use of cash collateraldebt obligations.

Insolvency Matters. (a) The Collateral Trustee Agent (on behalf of the First-Out Secured Parties) and the First-Out Representative, for itself and on behalf of the First-Out Secured Parties, and the Collateral Trustee Agent (on behalf of the First Lien Term B Secured Parties) and the First Lien Term B Representative for itself and on behalf of the First Lien Term B Secured Parties, acknowledge acknowledges and agree agrees that because of, among other things, their differing rights to payment in respect of the proceeds of the Collateral, the First-Out Obligations are fundamentally different from the First Lien Term B Obligations, are not substantially similar to the Term B Obligations within the meaning of Bankruptcy Code Section 1122(a), and must be separately classified from the Term B Obligations in any plan of reorganization proposed proposed, confirmed or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held by a court of competent jurisdiction that the claims of the First-Out Secured Parties and the First Lien Term B Secured Parties in respect of the Collateral constitute only one secured claim or are properly classified in one class (rather than separate claims or classes of secured claims), then each of the parties hereto Priority Lien Secured Parties hereby acknowledges and agrees that all distributions from or in respect of the Collateral hereunder shall be made as if there were separate classes in accordance with Section 3.4 of secured claims against the Grantors from or in respect of the Collateral this Agreement and the First-Out Secured Parties shall be entitled to receive (subject to the provisions of Section 3.4 of this Agreement)receive, in addition to amounts distributed to them from, or in respect of, the Collateral in respect of principal, any pre-petition interest and other claims, all amounts owing in respect of any post-petition interest, fees, costs, expenses, premiums, and other charges, irrespective of whether a claim for such amounts is allowed or allowable in such Insolvency or Liquidation Proceeding, before any distribution from, or in respect of, any Collateral is made in respect of the claims held by the First Lien Term B Secured Parties who are not the Collateral Trustee (other than distributions of Collateral pursuant to Sections 3.4(a)(II) and 3.4(a)(IV))Parties, with the Collateral Trustee Agent (on behalf of the First Lien Term B Secured Parties, but not on behalf of itself) and the First Lien Term B Secured Parties (except the Collateral Trustee) acknowledging and agreeing to turn over to the First-Out Secured Parties prior to the Discharge of First-Out Obligations (other than Excess First-Out Obligations) amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence (excluding amounts received pursuant to Sections 3.4(a)(II) section and 3.4(a)(IV))this Agreement, even if such turnover has the effect of reducing the claim or recovery of the First Lien Secured Parties who are not the Collateral Trustee. Notwithstanding any provisions of this Section 2.4(a) to the contrary, the Collateral Trustee’s Fees and Expenses shall at all times be paid in full, prior to any payments being made to any of the other First Lien Term B Secured Parties. (b) If None of any Term B Representative or any other Term B Secured Party (whether in the capacity of a secured creditor or an unsecured creditor) shall propose, vote in favor of, or otherwise directly or indirectly support any plan of reorganization that is inconsistent with the priorities or other provisions of this Agreement (including but not limited to Sections 2.4 and 3.4), other than with the prior written consent of the Priority Lien Representative for the Required First-Out Debtholders or to the extent any such plan is accepted by the percentage (both in amount and number) of the First-Out Secured Parties required for First-Out Secured Parties’ class to be an accepting class under section 1126(c) of the Bankruptcy Code without taking into consideration any votes in that class on account of claims that are not First-Out Obligations. Furthermore, none of any Term B Representative or any other Term B Secured Party (whether in the capacity of a secured creditor or an unsecured creditor) shall object to or contest (or support any other party in objection or contesting) a plan of reorganization or other dispositive restructuring plan on the grounds that the First-Out Obligations and Term B Obligations are classified separately. (c) The parties hereto acknowledge that this Agreement is a “subordination agreement” under Section 510(a) of the Bankruptcy Code and shall continue in full force and effect, notwithstanding the commencement of any Insolvency or Liquidation Proceeding by or against the Parent, the Company and/or or any subsidiary of the Company. All references in this Agreement to the Parent, the Company or any subsidiary of the Company or any other Grantor will include such Person or Persons as a debtor-in-possession and any receiver or trustee for such Person or Persons in an Insolvency or Liquidation Proceeding. (d) If the Parent, the Company or any of its subsidiaries shall become subject to an any Insolvency or Liquidation Proceeding and shall, as debtor(s) in debtor(s)-in-possession, or if any receiver or trustee for such Person or Persons shall, move for approval of a financing (each, a “DIP Financing”) to be provided by one or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law (including on a priming basis) or the use of cash collateral under Section 363 of the Bankruptcy Code or any equivalent provision Code, the Term B Representative, for itself and on behalf of each Term B Secured Party, agrees that neither it nor any other Bankruptcy Law, each Priority Lien Term B Secured Party (other than the Controlling Priority Lien Representative) agrees that it will not raiseraise any objection, join contest or support oppose, and each Term B Secured Party will waive any objection claim such Person may now or hereafter have, to any such financing DIP Financing or to the Liens on the Collateral securing the same such DIP Financing (“DIP Financing Liens”) ), or to any use use, sale or lease of cash collateral that constitutes CollateralCollateral or to any grant of administrative expense priority under Section 364 of the Bankruptcy Code, unless (i) the Controlling Priority Lien First-Out Representative shall then or the First-Out Secured Parties oppose or object (or join in any objection) to such DIP Financing or such DIP Financing Liens or such use of cash collateral, (ii) the maximum principal amount of indebtedness permitted under such DIP Financing exceeds the sum of (A) the amount of First-Out Obligations refinanced with the proceeds thereof and (B) the greater of (I) $65 million and (II) 20% of the sum of (x) the aggregate amount of indebtedness for borrowed money constituting principal outstanding under the First-Out Documents plus (y) the aggregate face amount of any letters of credit issued and outstanding under the First-Out Documents on the date of the commencement of such Insolvency or Liquidation Proceeding, or (iii) the terms of such DIP Financing provide for the sale of a substantial part of the Collateral or require the confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof). To the extent such DIP Financing Liens are (x) senior to the Liens on the Collateral securing the Priority Lien Obligations, the Term B Representative will, for itself and on behalf of the other Term B Secured Parties, (A) agree to permit the Collateral Agent to subordinate the Liens on the Collateral securing the Term B Obligations to the DIP Financing Liens on the terms to which the First-Out Representative has agreed to subordinate the First-Out Obligations and (B) confirm that such Collateral shall be subject to Section 3.4 and (y) pari passu to the Liens on the Collateral securing the Priority Lien Obligations, the Term B Representative will, for itself and on behalf of the other Term B Secured Parties, confirm that such Collateral shall be subject to Section 3.4, in each case so long as (A) the Priority Lien Collateral Agent, on behalf of the Term B Secured Parties of each Series of Priority Lien Debt retain the benefit of their Parties, retains Liens on all such Collateral pledged to the DIP LendersCollateral, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis-à-vis all the other Priority Lien Secured Parties (other than any Liens of the Priority Lien Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of such Insolvency or Liquidation Proceeding. (e) The Term B Representative, for itself and on behalf of each Term B Secured Party agrees that it will not object to, oppose or contest (Bor join with or support any third party objecting to, opposing or contesting) and if requested, will consent to a sale or other Disposition, a motion to sell or Dispose or the bidding procedure for such sale or Disposition of any Collateral (or any portion thereof) under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code, if the First-Out Secured Parties shall have consented to such sale or Disposition, such motion to sell or Dispose or such bidding procedure for such sale or Disposition of such Collateral provided that (i) all Liens securing the Priority Lien Secured Parties Obligations will attach to the proceeds of each Series the sale subject to Section 3.4 or (ii) the net cash proceeds of Priority Lien Debt any Disposition under Section 363(b) of the Bankruptcy Code are granted Liens on any additional collateral pledged permanently applied to any Priority Lien Secured Parties as adequate protection or otherwise in connection with such the DIP Financing or use of cash collateral, with the same priority vis-à-vis to the Priority Lien Secured Parties as set forth in this Agreement, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the Priority Lien Obligations, such amount is applied Obligations pursuant to Section 3.4. (f) The Term B Representative, for itself and on behalf of each other Term B Secured Party waives any claim that may be had against the First-Out Representative or any other First-Out Secured Party arising out of any DIP Financing Liens or administrative expense priority under Section 364 of the Bankruptcy Code (Din each case that is granted in a manner that is consistent with this Agreement). (g) if The Term B Representative, for itself and on behalf of each other Term B Secured Party, agrees that neither the Term B Representative nor any Priority Lien other Term B Secured Parties are granted Party will file or prosecute in any Insolvency or Liquidation Proceeding any motion for adequate protection (or any comparable request for relief), including for payment of Post-Petition Interest, based upon adequate protection of their interest in the Collateral, nor object to, oppose or contest (or join with or support any third party objecting to, opposing or contesting) (i) any request by the First-Out Representative or any other First-Out Secured Party for adequate protection, including for payment of Post-Petition Interest, or (ii) any objection by the First-Out Representative or any other First-Out Secured Party to any motion, relief, action or proceeding based on the First-Out Representative or First-Out Secured Parties claiming a lack of adequate protection, provided that: (1) The First-Out Representative, for itself on behalf of each other First-Out Secured Party, covenants and agrees that to the extent the First-Out Representative or any other First-Out Secured Party seeks and obtains relief granting adequate protection in the form of periodic paymentsa replacement lien, adequate protection payments or additional collateral granted to, or for the benefit of, the First-Out Secured Parties, then such party shall, and shall take all action necessary to cause the First-Out Representative and the Collateral Agent to, provide the benefits of such relief to the Term B Secured Parties (on the terms and subject to the conditions of this Agreement, including Section 3.4); (2) the Term B Secured Parties may freely seek and obtain relief granting adequate protection in the form of superpriority claims to the same extent granted to the First-Out Secured Parties (on the terms and subject to the conditions of this Agreement, including Section 3.4); and (3) the Term B Secured Parties may freely seek and obtain any relief upon a motion for adequate protection (or any comparable relief), without any condition or restriction whatsoever, at any time after the Discharge of First-Out Obligations. (h) To the extent the Term B Obligations and the First-Out Obligations are classified in the same class under a plan of reorganization, the Term B Representative, for itself and on behalf of each of the other of the Term B Secured Parties waives any claim it or any such other Term B Secured Party may now or hereafter have against the First-Out Representative or any other First-Out Secured Party (or their representatives) arising out of any election by the First-Out Representative or any First-Out Secured Parties, in connection with such DIP Financing any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code. (i) [Reserved]. (j) The Term B Representative, for itself and on behalf of each other Term B Secured Party, agrees that neither the Term B Representative nor any other Term B Secured Party shall seek relief (or use of cash collateralsupport any other party seeking relief), the proceeds of such adequate protection are applied pursuant to Section 3.4 362(d) of the Bankruptcy Code or otherwise, from the automatic stay of Section 362(a) of the Bankruptcy Code or from any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral without the prior written consent of the First-Out Representative. (k) The Term B Representative, for itself and (E) either (i) on behalf of each other Term B Secured Party, agrees that neither the Liens securing such DIP Financing are not senior Term B Representative nor any other Term B Secured Party shall oppose or seek to challenge any claim by the First-Out Representative or any other First-Out Secured Party for allowance or payment in any Insolvency or Liquidation Proceeding of First-Out Obligations consisting of Post-Petition Interest or cash collateralization of all letters of credit to the extent of the value of the Liens securing the Priority Lien Obligations (it being understood that such value will be determined without regard to the existence of the Term B Obligations). (l) Without the express written consent of the First-Out Representative, none of the Term B Representative or any other Term B Secured Party shall (or shall join with or support any third party in opposing, objecting to or contesting, as the case may be), in any Insolvency or Liquidation Proceeding involving any Grantor, (i) oppose, object to or contest the determination of the extent of any Liens held by any First-Out Secured Party or the value of any claims of any such holder under Section 506(a) of the Bankruptcy Code or (ii) oppose, object to or contest the payment to the First-Out Secured Party of interest, fees or expenses under Section 506(b) of the Bankruptcy Code. (m) Notwithstanding anything to the contrary contained herein, if in any Insolvency or Liquidation Proceeding a determination is made that any Lien encumbering any Collateral is not enforceable for any reason, then each Priority Lien Representative for themselves and on behalf of their respective Priority Lien Secured Parties agrees that, any distribution or recovery they may receive in respect of any Collateral (including assets that would constitute Collateral but for such determination) shall be segregated and held in trust and forthwith paid over to the Collateral Agent in the same form as received without recourse, representation or warranty (other than a representation of such Priority Lien Representative that it has not otherwise sold, assigned, transferred or pledged any right, title or interest in and to such distribution or recovery) but with any necessary endorsements or as a court of competent jurisdiction may otherwise direct in order to comply with Section 3.4. (n) The Term B Representative, for itself and on behalf of each other Term B Secured Party, hereby agrees that the First-Out Representative shall have the right to credit bid the First-Out Obligations maintain the same priority with respect to proceeds and further that none of the Collateral Term B Representative or any other Term B Secured Party shall (or shall join with or support any third party in opposing, objecting to or contesting, as set forth in Section 3.4 (including that the case may be) oppose, object to or contest such credit bid by the First-Out Representative. The Term B Secured Parties may credit bid, or instruct the Term B Representative to credit bid the Term B Obligations will have priority ahead in accordance with Sections 363(k) or 1129 of the obligations owed Bankruptcy Code or any other applicable law, only if such bid includes a cash payment sufficient to the DIP Lenders) or (ii) provide for the Discharge of First-Out Obligations (other than with respect to any Excess and the Discharge of First-Out ObligationsObligations occurs immediately after giving effect to such credit bid, or if the First-Out Representative otherwise consents in writing. (o) occurs Without the consent of the First-Out Representative in connection with such DIP Financing; provided that (x) its sole discretion, the Priority Lien Secured Parties Term B Representative, for itself and on behalf of each Series other Term B Secured Party agrees neither the Term B Representative nor any Term B Secured Party shall commence or join with any parties to commence an involuntary bankruptcy petition for the Company or any of Priority Lien Debt shall have its subsidiaries, or support entry of an order for relief in any involuntary bankruptcy proceedings against the Company or any of its subsidiaries, or seek the appointment of an examiner or a trustee for the Company or any of its subsidiaries. (p) The Term B Representative, for itself and on behalf of each other Term B Secured Party waives any right to object to the grant of a Lien to secure the DIP Financing over assert or enforce any property claim under Section 506(c) or assets subject to Liens in favor 552 of the Priority Lien Secured Parties of such Series of Priority Lien Debt that does not constitute Collateral and (y) that the Priority Lien Secured Parties receiving adequate protection shall not object to Bankruptcy Code as against any other Priority Lien First-Out Secured Party receiving adequate protection comparable to or any adequate protection granted to such Priority Lien Secured Parties in connection with a DIP Financing or use of cash collateralthe Collateral.